Dover, Rochester, Portsmouth file new lawsuit against EPA

Monday

Dec 17, 2012 at 1:48 PMDec 17, 2012 at 2:08 PM

By JIM HADDADINjhaddadin@fosters.com

DOVER — Three of the five communities that banded together earlier this year to try to block new water quality standards taking effect in the region have filed a lawsuit against the EPA over the issue.

The decision highlights a growing schism in the approaches being taken by the five members of the so-called “Great Bay Municipal Coalition.” Dover, Rochester and Portsmouth have signed on to new litigation over the issue. Two of those communities have taken the additional step of filing new administrative appeals in New Hampshire and before the EPA.

However, Newmarket has acquiesced to the EPA's recommendations, and another coalition member — Exeter — appears to be on the same path, according to an attorney representing the communities.

“I'm suspecting that they will do the exact same thing that Newmarket did,” John C. Hall, of Hall & Associates said.

Communities around Great Bay have butted heads with the EPA during the last two years over strict new nitrogen discharge standards being phased in around the Seacoast. The EPA has called for Newmarket and other Great Bay communities to cap nitrogen discharge at 3 milligrams per liter. Meeting that limit will require millions of dollars worth of technological upgrades at wastewater treatment plants around the area.

Members of the Great Bay Municipal Coalition have asked the EPA to consider issuing wastewater discharge permits that cap nitrogen at 8 milligrams per liter, a level more easily attainable.

The five communities sued the state over the issue earlier this year, but the suit was recently dismissed by a Merrimack Superior Court judge. They are awaiting a decision from the judge on a motion for reconsideration.On Thursday, Dover, Portsmouth and Rochester filed a new federal lawsuit against the EPA in the U.S. District Court for the District of Columbia. They argue that EPA failed to meet a requirement under the Clean Water Act for public participation during the development and revision of water quality standards.

Great Bay Coalition members claim they repeatedly asked the NH Department of Environmental Services (NHDES) to create a new set of criteria for acceptable nutrient levels in Great Bay Estuary. EPA officials encouraged the state to avoid that prospect, according to the lawsuit.

The communities are asking a federal judge to force the EPA to use a “formal state adoption process for water quality standards,” and to make a new assessment about whether the health of the estuary has been impaired.

Appeals filed with EPA board, state of NHDover and Rochester also brought a separate legal action last week. They're challenging the EPA water discharge permit recently issued to Newmarket.Newmarket is not challenging the permit itself. Town officials recently agreed to accept the stringent nitrogen discharge standards being imposed by the EPA after a period of 15 years. The community entered into a legal agreement this month to improve its water treatment capabilities.

Officials in Dover and Rochester decided to appeal Newmarket's permit in an effort to “protect their constituents,” Dover City Manager Michael Joyal wrote in an email sent last week. He noted that the EPA is relying on the same scientific analysis it used to draft Newmarket's permit as it communicates with Dover and Rochester.

“That analysis presumes that nitrogen entering the Great Bay Estuary is causing increased generation of microalgae that is shading eelgrass and inhibiting its growth,” Joyal wrote. “The NH Department of Environmental Services (DES) has acknowledged that the available data does not support the conclusion that this is occurring in the Great Bay Estuary.”

Dover and Rochester are appealing the federal permit issued to Newmarket, as well as the state's earlier decision to certify water quality standards for Great Bay Estuary. The communities were both refused an opportunity to negotiate the standards with NHDES, according to Joyal.

“Dover and Rochester wish to emphasize that they do not intend to interfere in whatever plans Newmarket may have to address its own WWTF [wastewater treatment facility],” Joyal wrote. “They are taking this action solely to protect the interests of their own constituents and to ensure that the enormous costs that EPA and DES have threatened to impose on municipalities, businesses and individual throughout the Great Bay watershed are not wasted.”

The EPA allowed communities to offer public comment in the process of drafting Newmarket's wastewater discharge permit. Members of the Great Bay Municipal Coalition submitted information challenging the nutrient criteria being used by state environmental officials, but it was received after the close of the EPA's formal public comment period on the permit.

Members of the Great Bay Municipal Coalition claim new information from state employees and a report released this month by the Piscataqua Region Estuaries Partnership (PREP) paint a less dire picture regarding the health of Great Bay than was previously understood.

They highlight the fact that total nitrogen concentrations in Great Bay have been monitored since 2003, but have not shown “any consistent trends,” according to PREP's report. In particular, the communities point out findings from the report that indicate:

-The large increase in nitrogen loadings in the mid 2000s “appeared to be driven by higher amounts of nitrogen carried into the bay by rain runoff” and that “no long or short term treads [sic] can be determined.”

-“[A]dditional research on how climate and weather affect the amount and timing of nitrogen delivery to the estuary is needed.”

-Chlorophyll-a, a measure of microalgae in the water, has been in Great Bay since 1975, and has not shown any consistent long-term trends. In addition, there have been no short-term changes in levels of the substance in the last three years.

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